FLEMING STEEL CO. v. JACOBS ENGINEERING GROUP, INC
2:16-cv-00727
W.D. Pa.Dec 21, 2017Background
- Fleming Steel (plaintiff) assisted Jacobs Engineering (defendant) with hangar door design for a Navy contract; Fleming alleges it agreed to design without compensation in exchange for Jacobs’ promise to make Fleming the sole-source supplier.
- Fleming was not awarded the door contract and sued Jacobs for breach of contract, misrepresentation, and unjust enrichment.
- Fleming retained attorney John Manfredonia in September 2014 as litigation counsel after Fleming learned it would not be sole-source; Manfredonia was not involved in the original negotiations and did not become counsel of record in this case until December 2017.
- Jacobs subpoenaed Manfredonia for deposition seeking his pre-litigation communications with the Navy and with Fleming’s lobbyists (O’Brien, Gentry & Scott) about Fleming’s alleged organizational conflict of interest (OCI).
- Fleming moved for a protective order and to quash the subpoena, asserting attorney–client privilege and work-product protection; Jacobs argued Manfredonia is a fact witness for pre-litigation communications and that privilege may be waived.
- The magistrate judge denied Fleming’s motion, concluding Fleming failed to show good cause for protection and that contested communications may not be privileged or may be waived; privilege/work-product objections may still be asserted at deposition for court review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deposition of opposing counsel should be barred | Manfredonia is Fleming’s counsel; deposition allowed only under Shelton factors and those factors are not met | Manfredonia is a fact witness re: pre-litigation communications; Shelton inapplicable | Motion for protective order and to quash denied; deposition may proceed subject to privilege objections |
| Applicability of Shelton v. American Motors test | Shelton protects against depositions of opposing counsel except in narrow circumstances | Shelton not adopted in Third Circuit and facts differ (pre-litigation, non‑litigation counsel) | Court declined to adopt Shelton as governing test here; used Fed. R. Civ. P. 26(c) good-cause framework |
| Whether communications sought are privileged or work product | Communications with Navy and lobbyists were in anticipation of litigation and thus privileged/work product | Communications appear aimed at persuading Navy (business), not seeking legal advice; some communications already produced (waiver) | Court found privilege not clearly established and waiver issues exist; privilege/work-product may be asserted at deposition for court resolution |
| Burden for protective order | Fleming must show annoyance, oppression, undue burden/expense | Jacobs: no such showing; questions limited to relevant pre-litigation facts | Fleming failed to carry burden of good cause under Rule 26(c); protective order denied |
Key Cases Cited
- Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986) (establishes three-factor test for deposing opposing counsel)
- Rhone-Poulenc Rorer, Inc. v. Home Indem., 32 F.3d 851 (3d Cir. 1994) (defines attorney–client privilege in Third Circuit)
- Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414 (3d Cir. 1991) (discusses work-product doctrine and its purpose)
- Johnston Dev. Grp., Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348 (D.N.J. 1990) (permitting deposition of adverse counsel where information is relevant and non-privileged)